Abatement of suit

Supreme Court: In an appeal filed under Article 136 of the Constitution of India, the appellant who are the sons of the third defendant, challenged the judgment and decreed passed by the Karnataka High Court dated 09-09-2010. Exercising its civil appellate jurisdiction, the division bench of B.R. Gavai and C.T. Ravikumar* J.J., while dismissing the appeal, held that a suit will not abate for not impleading all legal representatives of the deceased defendant if the subject property was substantially represented by other defendants.

In the matter at hand, the appellants had filed first appeal, however, during the pendency of the appeal, the second appellant had died. In the current appeal, the original first appellant, the impleaded legal heirs of the deceased and the second appellant were collectively described as ‘appellants.’

It was contended that that the subject suit was not maintainable since there was no prayer for possession, that the suit was not valued correctly and that the real owners of the suit property was not arraigned as parties. In appeal before the Supreme Court, it was contended that the suit was bad for non-joinder of the parties, from whom the titles were claimed.

The appellants contended that the suit ought to have been held as abated against all the appellants owing to non-substitution of all legal representatives of the deceased upon his death.

They further challenged the decree of prohibitory and mandatory injunctions passed against them with respect to certain properties, but the respondents had filed the suit based on possessory title.

Legal Trajectory

The Trial Court partly decreed the suit, holding that the respondents were entitled to recover possession of suit ‘B’ schedule property from the appellants within two months from that day. Further, it was also decreed that the respondents would be entitled to recover possession of ‘B’ schedule property from the appellants by due process of law in case of failure on the part of the appellants. Furthermore, the appellants were restrained by perpetual injunction from interfering with the peaceful possession and enjoyment of ‘C’ schedule property by the respondents.

The same was challenged by the respondents contending that the said suit was filed under the provisions of Specific Relief Act, 1963 (‘SRA’), therefore, the appeal filed before the High Court was incompetent. In a civil appeal, the Supreme Court disposed of the matter by stating that it was not under Section 6 of SRA as the relief sought for did not fall within its scope.

Court Analysis

The Bench noted that the first appellant, deceased and their father were all arrayed in the suit as appellants who were jointly defending the suit. Upon the death of 2nd appellant, the original appellants 1st and 3rd, who were sons of the original defendant 3 fully and substantially representing the joint interest contested the suit and, thereafter, after suffering an adverse judgment and decree in the suit diligently preferred the appeal before the High Court which ultimately culminated in the impugned judgment and decree.

Placing its reliance on Bhurey Khan v. Yaseen Khan, 1995 Supp (3) SCC 331 and State of Andhra Pradesh v. Pratap Karan, (2016) 2 SCC 82, the Bench stated that the suit will not abate for the reason of non-substitution of all legal representatives of the deceased if the suit was substantially represented.

Upon the death of the deceased, the joint interest was fully and substantially taken forward in the proceedings by the first appellant along with the substituted legal representatives of the deceased, therefore, the Court stated that it did not find any reason to disagree with the conclusions and findings of the Courts below for rejecting the contention that suit ought to have held abated owing to the non-substitution of all the legal heirs of deceased.

The Bench further observed that the principle of ‘lis penden’ was based on ‘justice, equity and good conscience’ and the same would be applied even in a case where the provision of Section 52 of the Transfer of Property Act, 1882 was not applicable in the strictest sense.

The Court explained that though the doctrine of ‘lis pendens’ will not invalidate the sale transaction of a property which was the subject matter of the litigation during the pendency of the proceedings, such sale would not operate as against the successful party in litigation.

The Court stated that “Evidently, the High Court declined to act upon the same, in the light of the doctrine of lis pendens. Even if it is taken for granted that the provisions under Section 52 of the Transfer of Property Act are not applicable as such in the case on hand it cannot be disputed that the principle contained in the provision is applicable in the case on hand.”

The Bench referred to the case of Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Limited, (2013) 5 SCC 397 and held that the “provision of Section 52 of the Transfer of Property Act, 1882, did not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. There can be no doubt with respect to the position that the prohibition by application of the principles of the said doctrine would take its effect with the institution of the suit.”

The Bench noted that the present suit was based on the possessory title and the respondent’s claim was based on prior possession. Hence, the amendment application under the provision of CPC to amend the written statement sought by the defendants would have brought in new issues at the appellate stage.

The Court stated that if both parties have not established title, then the party who proved prior possession will succeed. Such right of the person who had prior possession will hold good against the whole world except the person who had title over the property.

In this regard, the Court applied the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis’- he that hath possession hath right against all but him that hath the very right. When the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner.

The Bench referred to Nair Service Society Limited v. Rev. Father K.C. Alexander, (1968) 3 SCR 163 which had held that “…that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that “possession was without any title.

The Bench also observed that in a suit for possession, the appellant’s claim that a third party had title over the property was not sustainable. This plea was known as the plea of ‘jus tertii’ meaning ‘right of a third party’. It was a plea against a claim of interest in property, raised in defence that a third party had a better right that the claimant. However, in a suit against trespass, such a plea was not maintainable.

The Bench stated that the Courts below were correct in holding that the appellants did not have a case of ownership over the suit schedule property and such a case sought to bring out was repelled by the High Court and accordingly upheld the same. It was of the view that they had failed to establish any better claim for possession.

“The finding of the High Court that any volume of evidence sans appropriate pleadings would be no avail is the correct exposition of law.” observed the Court.

Therefore, it was held that the original defendants failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession of the suit properties. No amount of proof offered without appropriate pleadings would have any relevance. The Courts below have rightly relied on the evidence to hold forceful dispossession of the appellants from ‘B’ schedule property.

With the above observation, it was stated that the impugned judgement was not inflicted with perversity or any patent illegality warranting interference in invocation of the power under Article 136 of the Constitution of India.

After carefully considering the evidence on record, the Trial Court had arrived at the conclusion that the respondent was entitled to get back the possession of suit schedule property from which he was dispossessed and even after careful consideration of the additional evidence recorded and transmitted to the High Court by the Trial Court and considering all contentions and aspects with reference to plethora of decisions, the High Court only confirmed the judgment and decree of the Trial Court. Therefore, it was held that the concurrent findings of the Courts below were the outcome of the rightful consideration and appreciation of materials on record which do not call for any interference.

[Shivshankara v H.P. Vedavyasa Char, 2023 SCC OnLine SC 358, decided on 29-03-2023]

Judgment authored by Justice C.T. Ravikumar

Know Thy Judge | Justice Chudalayil Thevan Ravikumar

Advocates who appeared in this case :

For the appellant- Advocate on Record;

For the Respondent- Senior Advocate Narender Hooda, Advocate Aljo K Joseph, Advocate on Record Ritesh Kumar Chowdhary, Advocate Mr. Saurya Lamba.

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